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Reed v. Tacoma R. & P. Co. - 117 Wash. 547, 201 P. 783 (1921)


The test of contributory negligence or want of due care is not always found in the failure to exercise the best judgment or to use the wisest precaution. Some allowance may be made for the influences which ordinarily govern human action, and what would under some circumstances be a want of reasonable care might not be such under others.


Plaintiff B. F. Reed was injured in a collision between the automobile in which Reed was a passenger and a street car operated by Defendant Tacoma Railway & Power Company. Reed sued the Tacoma Railway to recover for his personal injuries. At trial, the driver of the automobile testified that, upon seeing the street car, she concluded that the best thing to do was to attempt to cross the tracks in time to avoid a collision. The trial court instructed the jury that an error in the driver's judgment precluded recovery by the passenger. The trial court entered a judgment of dismissal in favor of Tacoma Railway. On appeal, Reed argued that the instruction to the jury was an error.


Did the trial court correctly state the law in instructing the jury?




The Court noted that the driver's familiarity or lack thereof with the location of the accident had nothing to do with the driver's contributory negligence, if any. Thus, Reed's tendered instruction was properly denied. However, error of judgment was not necessary negligence. The correct test was whether the driver acted as a reasonably prudent person would have under similar circumstances. Thus, the trial court's instruction did not state the law correctly. Further, under Wash. Code § 384 (Remington), it was not necessary that exceptions to an instruction stated wherein the instruction was wrong. Thus, Reed's exceptions to the disputed instructions were sufficient. The Court reversed the trial court's decision and remanded the cause for a new trial.

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